HEADING OF JUDGEMENT IN
ORIGINAL SUIT/CASE
District: Rajshahi
In the Court of Family Judge, Mohonpur, Rajshahi
Present:
- Mr. Md. Abdul Malek, Judge, Family Court
Family Suit No. 60/19
Mst. Joli Begum, Plaintiff Versus Mr. Md. Hafijul Rahman, Defendant
The suit coming on trial ended and the argument was heard.
In the presence of...
And having stood for consideration to
this day, the Court delivered the following judgment: This is a family suit instituted
with a prayer for recovering unpaid dower money and maintenance against the Defendant.
The Plaintiffs’ Plaint in
the nutshell:
A marriage was contracted and registered
between the Plaintiff and the Defendant on 20/07/2019 upon fixing dower money
at Tk. 3,00,000/. In the aftermath, the
Defendant demanded dowry; and on refusal to give him dowry, he drove the Plaintiff
away from his adobe on 01/08/2019 and then, she took shelter in her father’s
house. From that time, the Plaintiff started staying at that abode and later
on, she repudiated their marital tie on 04/08/2019. On 01/08/2019, the
Plaintiff demanded unpaid dower money and her maintenance from the Defendant
but the latter refused to pay the same; and hence the suit.
The Written
Statement in Brief:
On the other hand, the Defendant
contested the suit by filing written statement denying the material
averments made in the plaint. He contended, inter
alia, that the Plaintiff lacks in locus
standi, the impugned facts are fabricated and fraudulent, and the very suit
is legally untenable, unjustifiable; and dismissible for cloudy cause of
actions.
The Defendant stated that the plaintiff
is a spouse of his step brother, who got married to each other ten years ago
and now, they have two offspring in their family. The defendant also claimed
that there is or was no marriage between the plaintiff and the defendant; and
they never reside under same roof upon marital knot. Since there was no
marriage either through sharia law or registered nikahnama, there arises no
question as to the dissolution by the plaintiff of that alleged marriage in
between. Hence, the plaintiff is not entitled to get any reliefs as prayed for
and the suit is liable to be dismissed.
Issues:
Considering the parties’ pleadings, the issues are framed with
modifications for discussion in the following way:
1.
Whether the suit is
maintainable in the present form and manner.
2.
Whether the plaintiff is
entitled to get her dower money.
3.
Whether the plaintiff is
entitled to iddat maintenance.
4.
Whether the plaintiffs are
entitled to get remedy as prayed for.
Discussions and Decisions
In proof of the claims, the Plaintiff examined herself as PW. 01, and other witnesses as PW 02-06, and produced documentary evidences marked as Exhibit No. 01-05. On the other side, the Defendant examined himself as DW 01 and another witness as DW-02. Another witness as CW-01 is also examined before the court. After the trial of the suit ended, the last reconciliation effort was failed and then, heard arguments from both sides.
Issue
No. 01:
The plaintiff filed the suit before this family court having jurisdiction under the provisions of the Family Court Ordinance, 1985; and paid proper court fees, with a prayer for a decree for dower and maintenance. Section 05 of the Family Court Ordinance, 1985 recognizes any aggrieved person’s right to file a lawsuit concerning the matter of dower and maintenance. So, since there appear no contrary materials to the aforesaid premise, it is decided that the suit is maintainable in the current form and manner. Hence, in the absence of materials to the contrary, the issue is settled in the plaintiff’s favor.
Issue
No. 02 and 03:
On perusal of the materials available on record, it appears that it is admitted that marriage was contracted and registered between the plaintiff Joly Begum and her current husband, one Selim Reza (PW-05) and now the plaintiff is leading conjugal life with him (Selim Reza) with having two offspring in their family [vide PW-01, (cross-examination). Accordingly, it is conspicuous that there existed and now exists a spousal relationship between the plaintiff and Selim Reza to date. Consequently, as issue No. 02 suggests, there arises a pertinent question as to whether the plaintiff got legally married to the defendant meanwhile so that she should get dower money from the defendant.
04. In the search of an answer to the aforesaid question, it appears that the plaintiff claims in her pleading and evidence that her marriage with Selim Reza (allegedly 1st husband) was dissolved through a khua talaq on 20/04/19 (ext: 06) and then, following the event, she further married to the defendant Hafizul Rahman (allegedly 2nd husband) on 20/07/2019 upon fixing dower money at Tk. 3,00,000 [PW-01; ext: 01]. Having claimed as such, the plaintiff tried to establish a case on the point that she meanwhile got married to the defendant and thus, is entitled to dower money and maintenance. On the other hand, the defendant is found in total disagreement with the plaintiff in ways that the plaintiff is a spouse of his stepbrother, who got married to each other ten years ago and now, they are leading their marital life with having two offspring in their family. The defendant also claimed that there is or was no marriage between the plaintiff and the defendant, and they never reside under the same roof upon marital knot (vide DW-01). Likewise, the defendant claims that since there was no marriage either through sharia law or registered Nikahnama, there arises no question as to the dissolution by the plaintiff of that alleged marriage in between (DW. 01-02). Hence, the defendant claims on those premises that the plaintiff is not entitled to get any reliefs as prayed for.
05. Now, considering aforesaid propositions as such, another incidental question comes into play on the fact that whether the marital relationship between the plaintiff and Selim Reza meanwhile lawfully terminated or not. That is to say, was there any lawful marriage between them (plaintiff and defendant)? On perusal of the materials on record, it transpires in evidence that Selim Reza got examined as PW-05 who vividly deposed that the plaintiff is his spouse and spent 7/8 years together as a spouse, and now, they have two offspring in their family. He also asserted that he repudiated his marital tie with the plaintiff after the birth of their 2nd child through khula talaq in 2019. On the issue at hand, he unequivocally asserted that he did not serve notice of talaq to the concerned U.P. chairman. Even, the plaintiff did not place any evidence on the fact that the notice of khula talaq was served upon the concerned U.P. chairman.
06. However, on this very vital point, the plaintiff only put forward the certified copy of the registration of khula talaq (ext: 06), and thus, claims that the talaq in question becomes effective as such. On the other hand, the defendant underscored his position on the demand that a spousal relationship between the plaintiff and Selim Reza exists to date since its inception. Accordingly, it becomes incumbent to consider the pertinent provisions of law that touch the ensuing facts. Section 7 of the 1961Muslim Family Laws Ordinance stipulates that “Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife. It also envisages that “Save, as provided in sub-section (5,), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.
07. The plain reading of the above statutory provision gives us a lucid understanding that any pronouncement of talaq shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman. The words “in any form whatsoever” appearing in section 7(1) of the Ordinance 1961 is very much significant; as it spells out that “in any form" means and includes khula talaq too; no matter whether talaq is registered or not), or no matter whether any modes of Talaq stated in Mahomedan Law. Because section 7 requires only a notice of a talaq to be given to the Chairman to give effect to divorce. In fact, Khula or Mubara'at is another form of talaq or dissolution of marriage by agreement Khula or Mubarat is stated in section 319 of Mulla's Principles of Mahomedan Law [19th Ed. 1990, (2010 reprint)].
08. Now, consider a bird's eye view on some judicial pronouncements on section 7 of The Ordinance of 1961. With regard to the objects, requirements, and consequences of section 7 of the 1961Ordinance, it has been highlighted that the object of section 7 of The Ordinance is to prevent the hasty dissolution of marriage by talaq proposed by the husband, unilaterally, without an attempt is being made to prevent disruption of matrimonial status [vide 15 DLR (SC) 9]. It has also been laid down that in the event of failure of compliance of provision of sub-section 1 of section 7 of The Ordinance a Talaq even if pronounced by a husband cannot be effective in law and the marriage between husband and wife subsists [vide Abdul Aziz vs Rezia Khatoon 21 DLR 733].
09. It has further been reported [46 DLR
700] that divorce under the Ordinance is not a unilateral act, and it precludes
a divorce on talaq from being effective from a period of ninety days from the
date of receipt of the notice by the Chairman and consequently marital status
of the parties will not in any way change and parties in law will continue to
remain, husband and wife, till the divorce is confirmed. Ninety days
reconciliation period is to start from the date of receipt of notice by the
Chairman, and not from the date when it was written. Although the failure of
the Chairman to constitute an arbitration council or that of a duly constituted
arbitration council to take necessary steps to bring about reconciliation is
inconsequential, it is the legal position that there shall be not Talak in
the eye of law unless provision contained in section 7(1) is sternly complied
with; and marriage between husband and wife shall subsist. In the event of
subsistence of the existing marriage, no man or woman can enter into a second
marriage. And if he enters, he shall contribute himself to be punished under
section 6(5) of the Ordinance. [vide Dilruba
Aktar vs AHM Mohsin, 55 DLR 568].
10. Non-service of notice to the Chairman
of the Union Parishad under the provision of this section cannot render
ineffective divorce disclosed in an affidavit. [vide Sirajul Islam vs Helana Begum and others, 48 DLR 48]. The
whole materials on record reveal that the Khula talaq in question was not
disclosed in an affidavit. It was also aptly argued in an occasion reported in
Md Sirajul Islam vs Mosammat Helena Begum, [1996
BLD 477] that “when divorce is clearly established by the conduct of the
husband, mere non-service of notice upon the Chairman as enjoined by section 7
of the Ordinance does not render the divorce ineffective.” In this respect, it
can be opined that with respect to the Khula talaq in question, a duty was cast
upon the husband to give notice under section 7 of the said Ordinance. Here,
the current husband of the plaintiff, Selim Reza, admitted in evidence (PW-05)
that he did not discharge his duty to serve notice to the concerned U.P.
chairman. Moreover, because Selim Reza is still leading his conjugal life with
the plaintiff, his Khula talaq attempt was presumably not intended by him, not
for eternity. Even, the non-service of notice to the chairman provided no
change of reconciliation whatsoever.
Accordingly, it vividly transpires to the court that the conduct of the
plaintiff and Selim Reza carries them nowhere in dissolving their marital tie.
11. Talaq pronounced by the wife must be
communicated to the husband. In our case, it was the alleged khula talaq. A
divorce by Khula is a divorce with consent. So, it is assumable that although
the communication of consents was over and complete, the defendant was not that
communicated husband; instead, her current husband was communicated as such (as
admittedly, the defendant and the plaintiff’s current husband is not identical
person). Hence, there arises no question as to effective communication between
the plaintiff and defendant. In addition, the defendant does not admit the fact
of any divorce between the plaintiff and her spouse Selim Reza. Accordingly,
the conduct of the parties has no pertinence in deciding, whether the
requirement of section 7(1) of the 1961 Ordinance was constructively compiled
or not, or whether the intendment of the legislature is served. The literal or
popular interpretation suggests that if the language of a statute is plain, the
only duty of the court is to give effect to it, and the court has no business
to look into the consequences of such interpretation.
12. Therefore, it becomes clear that “no
notice” under section 7(1) means “no talaq”....unless the provisions of section
7(1) of the 1961 Muslim Family Laws Ordinance are complied with regarding
service of notice to the Chairman of Union Council. In essence, such a talaq
attempt would fail to operate. Therefore, it is the court’s view that the
alleged talaq between the plaintiff and her current spouse Selim Reza could not
free her (plaintiff) to marry (the defendant) ‘meanwhile’. The provision of
section 7(1) of the Ordinance was standing on their way [vide 15 DLR (SC) 9] To
demystify, one may again come up with a question whether the deed of divorce
(ext. 06), even if held to be genuine, would operate as a valid divorce under
the current statutory provisions. The answer to this question, so as to the
fact of the suit is pertinent, is resounding “no”; it would not operate as a
valid divorce under the current statutory provisions of section 7(1) of the
1961 Muslim Family Laws Ordinance. The boom line counsels that section 7(1)
must sternly be complied with in order to give legal effect to an intended
divorce. Hence, upon the aforesaid premise, it is the court’s view that in the
subsistence of marital tie between the plaintiff and Selim Reza, the
plaintiff’s claim that marriage was contracted and registered between the
Plaintiff and the Defendant on 20/07/2019 upon fixing dower money at Tk.
3,00,000 is not sustainable in law.
13. Furthermore, as aforesaid, the
defendant does not admit the marriage contract and denies the authenticity of
the marriage registration (the plaintiff’s alleged second marriage). Although
the certified copy of the Nikahnama is placed before that court, and later on
divorce papers (ext: 1-5), a close perusal of the materials available on
record, it speaks out that the fact of the plaintiff’s second marriage with the
defendant appears to be incongruent and unconvincing. The PW-01 once stated in
her cross-examination that her second marriage was done at the house of Altaf
Kazi. She again stated at the office of Altaf Kazi. Altaf Kazi was not examined
before the court; instead, Md. Shohrab Hosen as CW-01 deposed that Altaf was
his assistant, and Altaf as a witness to the marriage and Altaf as Kazi are not
the same person. Besides, PWs 01-02 stated that the marriage in question was
contracted in the afternoon and in the presence of the plaintiff’s father, but
PW-04 underscored that it was done at 8 PM (at night), and he omitted to
mention the presence of her father at that occasion. In addition, the DW-01
denies his signatures on both Nikahnama and the acknowledgment of talaq notice.
No expert evidence is led by either party too. However, the DW02 also asserted
the fact of his ignorance of any marriage between the plaintiff and defendant,
although he claims to be one of their close relatives.
Taking into consideration of the
aforesaid facts, relevant laws, and ensuing circumstances, it is the court’s
view that the whole fabric of the legal and evidentiary edifice cannot make the
plaintiff stand on her own strength in proving her claims as such. So, the
court is decisive on the point that the alleged talaq between the plaintiff and
her husband Selim Reza was not effective, and thus, there was no valid
marriage, allegedly contracted on 20/07/2019, between the Plaintiff and the
Defendant upon fixing the aforesaid dower money. The relevant law is enunciated
in section 256 of Mulla's Principles of Mahomedan Law [19th Ed. 1990, (2010
reprint)] that “no Mohamedan woman cannot have more than one husband at the
same time.” Accordingly, the claims of the plaintiff are not sufficiently
proved with convincing and unimpeachable evidence and thus, not sustainable in
law. As a result, where there is no valid marriage, there is no question of
dower or talaq between the plaintiff and defendant on board. Hence, the issues
Nos. 02 and 03 are not decided in the plaintiff’s favor.
Issue
No. 04:
In essence, since the issues Nos. 02 and
03 are not decided in the plaintiff’s favor, it is, therefore, held that the
plaintiff is not entitled to get the relief as prayed for. Accordingly, in the
light of the discussions and decisions and the consideration of pleadings,
facts, surrounding circumstances, evidence both oral and documentary on record
as well as relevant laws, the court is of view that the suit deserves to be
dismissed on the contest.
The court fee paid is sufficient.
Hence, it is ordered that the suit be dismissed on contest against the Defendant without any order as to costs.